Ravjibhai Kashibhai Vs. Dahyabhai Zaverbhai Patil - Court Judgment
|Case Number||Civil Extraordinary Application No. 248 of 1919|
|Judge||Norman Macleod, Kt., C.J. and ;Fawcett, J.|
|Reported in||AIR1921Bom32; (1920)22BOMLR1454|
|Respondent||Dahyabhai Zaverbhai Patil|
civil procedure code (act v of 1908), section 115, schedule ii, para 16-indian limitation act (ix of 1908), article 158-award-decree in terms of award-procedure in passing decree.;where the court receives an award, and instead of allowing time to parties to make objections to it, passes immediately a decree in terms of the award, no appeal can lie from the decree so made; but) the high court can, under section 115 of the civil procedure code, set aside the decree and send the case back to the first court to enable the parties to file their objections to the award.;najm-ud-din ahmad v. albert puech (1907) i.l.r. 29 all. 534 not followed. - .....according to the award on the day the award was filed, and did not wait the ten days prescribed by schedule ii, paragraph 16 (1), of the code and article 158 of schedule i of the indian limitation act. no doubt it was held in najm-ud-din ahmad v. albert puech i.l.r. (1907) all. 584 that where a judgment is pronounced before the time has expired an appeal will lie. with all due respect i cannot see how an appeal will lie in such a case, because it is not suggested that there is any defect in the award. it may be that the award is a nullity or illegal ab initio. then as laid down by sir lawrence jenkins in the case i have referred to there may be an appeal. but where the learned judge has not followed the procedure laid down by the second schedule of the code and does not allow a party the.....
Norman Macleod, Kt., C.J.
1. Following the case of Walji Mathuradas v. Ebji Umersey I.L.R. (1904) Bom. 285 : 6 Bom. L.R. 1132 we think that we must hold that there is no appeal in this case as it has not been shown that the award is illegal ab initio. What the petitioner complains of is that the Court pronounced judgment according to the award on the day the award was filed, and did not wait the ten days prescribed by Schedule II, paragraph 16 (1), of the Code and Article 158 of Schedule I of the Indian Limitation Act. No doubt it was held in Najm-ud-din Ahmad v. Albert Puech I.L.R. (1907) All. 584 that where a judgment is pronounced before the time has expired an appeal will lie. With all due respect I cannot see how an appeal will lie in such a case, because it is not suggested that there is any defect in the award. It may be that the award is a nullity or illegal ab initio. Then as laid down by Sir Lawrence Jenkins in the case I have referred to there may be an appeal. But where the learned Judge has not followed the procedure laid down by the Second Schedule of the Code and does not allow a party the time which the law allows him to make objections, but proceeds to pass at once a decree in accordance with the award, then it cannot be said that there is any defect in the award itself, and under sub-para (2) of paragraph 16 of the Second Schedule it appears to be plain that no appeal would lie, but we think it is a case in which we should exercise our discretion under Section 115 of the Civil Procedure Code, and, therefore, we set aside the decree and the case must go back to the lower Court to enable the petitioner to file his objections which he must do within ten days after he has notice of the proceedings having reached , the lower Court.
2. Costs will be costs in the suit.